02/08/2008
FMLA Amended to Provide Covered Servicemember Leave

On Monday, January 28, 2008, President Bush signed into law the National Defense Authorization Act for Fiscal Year 2008.   Among other things, this Act amends the Family and Medical Leave Act (“FMLA”) to provide unpaid leave for certain family members of members of the Armed Forces (“Servicemembers”).

Specifically, leave is called for in two circumstances. First, an eligible employee (as defined by the FMLA) may be entitled to up to twelve (12) workweeks of leave in any twelve (12)-month period because of a “Qualifying Exigency” arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.  Second, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a Servicemember may be entitled to up to twenty-six (26) workweeks of leave during a single twelve (12)-month period to care for the Servicemember who has a serious injury or illness that may render him or her medically unfit to perform the duties of the Servicemember’s office, grade, rank, or rating.

There are several interesting aspects of this new type of leave.  For example, it is unclear what will constitute a “Qualifying Exigency” under the Act.  The Secretary of Labor anticipates issuing final regulations that will, among other things, define this term, although it is unclear when such regulations will be issued.  Also, the potential twenty-six (26) weeks of leave to care for an ill or injured Servicemember must be taken during a single twelve (12)-month period.  Thus, even if an injured Servicemember’s condition is permanent, the employee is only entitled to twenty-six (26) weeks of leave during one twelve (12)-month period (although he or she may be entitled to “regular” FMLA leave in subsequent years).  Further, the twenty-six (26) weeks of leave applies to family members of a Servicemember who has a serious injury or illness that “may” render him or her medically unfit to perform his or her duties.  It is unclear whether the word “may” is inartful drafting, or signals that medical unfitness is not absolutely necessary for this type of leave.  Finally, note that the “next of kin” of an ill or injured Servicemember may be entitled to leave.  This extends the definition of “family member” beyond the typical FMLA context and covers situations where a Servicemember does not have a spouse, child, or parent living.

The provisions in the National Defense Authorization Act providing Servicemember leave are effective immediately.  The Department of Labor, however, anticipates promulgating final regulations and guidance regarding this leave.  Further, the Department of Labor takes the position that the “Qualifying Exigency” leave is not effective until the Secretary of Labor issues final regulations defining the term “Qualifying Exigency.”  Thus, while the Department of Labor’s position is that employers must provide up to twenty-six (26) weeks of leave now in cases of ill or injured Servicemembers, its position is that “Qualifying Exigency” leave is not mandatory until such term is defined.  However, the Department “encourages” employers to provide such leave to eligible employees immediately.

Notwithstanding the regulations that may issue in the future, we encourage employers to revise their leave of absence policies now to include a statement about this new type of FMLA leave.  The reason for this suggestion is to ensure that employees who arguably might be entitled to this type of leave are advised of its existence and cannot subsequently claim they were denied the right to take such leave because they were unaware of it.  Also, at least until the Department of Labor issues regulations on Servicemember leave and the current ambiguities are resolved, we encourage employers to seek legal advice from an attorney of their choosing when the potential need for such leave arises.